The judge said a 2011 ruling by the 9th Circuit Court of Appeals that says the 43-foot-tall memorial violates the First Amendment stands, following a decision by the U.S. Supreme Court to not intervene in the long-running case.

While the 9th Circuit justices didn't specifically order the cross to be removed, it was clear that removal was the only remedy they would accept, according to Burns -- who noted his disagreement with the appellate decision.

Lawyers for the Mt. Soledad Memorial Association said the appeal is the first step toward trying again to take the case to the Supreme Court.

"If we fail to preserve this veterans memorial and the ACLU is successful in tearing down the oldest Korean War veterans memorial in the United States, then so, too, will be the fate of other veterans memorials like it, including the Canadian Cross of Sacrifice and the Argonne Cross in Arlington Cemetery," said Hiram Sasser, director of litigation for the Texas-based Liberty Institute, which raises funds to pay for the legal action.

Memorial Association President and CEO Bruce Bailey said it appears the U.S. Supreme Court "left the door'' open to reconsidering its decision not to hear the case.

The cross has stood on the hills above La Jolla since 1954 but has been subjected to legal challenges for the past 24 years.

In 2006, the federal government, through an act of Congress, obtained the title to the cross and its surrounding property by eminent domain, and declared the cross to be a national war memorial.

How many times do you get to appeal to the Supreme court for the same thing? I would think once is enough.

Also, the ACLU isn't tearing down a war memorial. It is removing a Christian cross that stands above a war memorial, which is supposed to honor service members of all religions, and those with no religion.

You forgot to note that former GOP stalwarts Mayor Jerry Sanders and conservative Congressmen Duncan Hunter Sr. and Brian Bilbray engineered the "sale" of the ground under the Christian Cross from the City of San Diego to the federal government, with the United States Navy as custodian. Disgraceful acts, but the legal wiggle room is diminishing.